Order — United States v. India Middleton et al. (Northern District of Georgia, Document 314)

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Order of the United States District Court for the Northern District of Georgia, Newnan Division, in Criminal Action File No. 3:21-cr-6-TCB against India Middleton, Nikia Wakefield, Katrina Lawson, and James McFarland. It takes up objections of Defendants Middleton, Wakefield, and Lawson to Magistrate Judge Vineyard's order and report and recommendation (the R&R), which denied motions for a bill of particulars and recommended denying motions to sever and Lawson's motion to suppress. The order states that Defendants are charged with wire fraud and conspiracy to commit wire fraud in connection with applications for funds under the CARES Act, including loans under the Payroll Protection Program. It overrules the objections, adopts the R&R as its order, and denies the motions to sever and suppress.

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     Case 3:21-cr-00006-TCB-RGV Document 314 Filed 03/30/22 Page 1 of 22




             IN THE UNITED STATES DISTRICT COURT
            FOR THE NORTHERN DISTRICT OF GEORGIA
                       NEWNAN DIVISION



UNITED STATES OF AMERICA
                                         CRIMINAL ACTION FILE
v.
                                         NO. 3:21-cr-6-TCB
INDIA MIDDLETON, NIKIA
WAKEFIELD, KATRINA
LAWSON, and JAMES
MCFARLAND, et al.,

       Defendants.



                                ORDER

      This case comes before the Court on the objections [303, 304, 305]

of Defendants India Middleton, Nikia Wakefield, and Katrina Lawson

to Magistrate Judge Russell G. Vineyard’s order and report and

recommendation (“the R&R”) [300]. The R&R denied Middleton and

Wakefield’s motions [229, 234] for a bill of particulars. It recommended

denying Middleton, Wakefield, and Defendant James McFarland’s

motions [230, 232, 239] to sever and Lawson’s motion [221] to suppress

evidence, as supplemented [272].
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I.    Background1

      Defendants, along with seven others, are charged with wire fraud

and conspiracy to commit wire fraud in connection with applications for

funds made available through the Coronavirus Aid, Relief, and

Economic Security (“CARES”) Act, including loans under the Payroll

Protection Program (“PPP”).

      On August 23, 2021, Lawson filed a motion [221] to suppress

evidence, arguing that the Court should suppress all evidence found on

or derived from her cell phone. Specifically, she argues suppression is

warranted because of the delay between the warrantless seizure of her

phone, the warrant application, and the search itself. On November 17,

Lawson filed a supplemental suppression motion [272], arguing that the

same evidence should be suppressed because the information in the

warrant itself was “too stale” to justify the issuance of a search warrant.

[272] at 1.



      1 The Defendants do not specifically object to the magistrate judge’s factual

findings. Accordingly, the Court adopts the magistrate judge’s recitation of the
factual background as set forth in the R&R [300], but provides a brief summary
here.

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      On September 7, Middleton and Wakefield filed substantially

identical motions [229, 234] for a bill of particulars, contending that the

“superseding indictment ‘alleges one large conspiracy among all

defendants to commit wire fraud,’ but ‘then alleges 13 substantive

counts outlining conduct specific to 1-4 individual defendants.’” [300] at

10 (quoting [229] at 3; [234] at 3). They further assert that the

indictment “does not explain how each of the ten named defendants

worked together to accomplish the single conspiracy charged.” Id.

(quoting [229] at 3; [234] at 3).

      On the same day, Middleton, Wakefield, and McFarland all filed

nearly identical motions [230, 232, 239] to sever, each seeking a

separate trial from their co-defendants. They specifically argue that

“‘admission of otherwise inadmissible hearsay would violate their due

process rights’; that admission of co-conspirator Quarterman’s drug

crimes would violate their due process rights; and that a joint trial in

this case would be unfair due to the danger of the ‘spill over’ effect.”

[300] at 17 (quoting [230] at 4–10; [232] at 3–8; [239] at 3–8).




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       On February 2, 2022, Judge Vineyard issued the R&R, which

denied the motions for a bill of particulars and recommended denying

the motions to sever and suppress. Middleton and Wakefield filed

objections [303, 304] to both the order and recommendation portions of

the R&R. Lawson filed objections [305] to the report and

recommendation portion. McFarland did not file objections.

II.    Legal Standards

       The Court must apply three different legal standards in reviewing

the R&R and Defendants’ objections thereto. The standard varies

depending on whether the magistrate judge issued an “order” or a

“report and recommendation” on the outstanding motions. Further, the

standard varies depending on whether Defendants objected to the

magistrate judge’s rulings.

       “A district judge may refer to a magistrate judge for determination

any matter that does not dispose of a charge or defense.” FED. R. CRIM.

P. 59(a). Once a magistrate judge issues an order, “[a] party may serve

and file objections to the order within 14 days after being served with a

copy of a written order . . . . The district judge must consider timely

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objections and modify or set aside any part of the order that is contrary

to law or clearly erroneous.” Id.

     “A district judge may refer to a magistrate judge for

recommendation a defendant’s . . . motion to suppress evidence . . . or

any matter that may dispose of a charge or defense.” FED. R. CRIM. P.

59(b)(1) (emphasis added). “Within 14 days after being served with a

copy of the recommended disposition . . . a party may serve and file

specific written objections to the proposed findings and

recommendations.” FED. R. CRIM. P. 59(b)(2).

     “The district judge must consider de novo any objection to the

magistrate judge’s recommendation. The district judge may accept,

reject, or modify the recommendation, receive further evidence, or

resubmit the matter to the magistrate judge with instructions.” FED. R.

CRIM. P. 59(b)(3).

     A district judge has a duty to conduct a “careful and complete”

review of a magistrate judge’s R&R. Williams v. Wainwright, 681 F.2d

732, 732 (11th Cir. 1982) (per curiam) (quoting Nettles v. Wainwright,

677 F.2d 404, 408 (5th Cir. Unit B 1982)). This review may take

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different forms, however, depending on whether there are objections to

the R&R. The district judge must “make a de novo determination of

those portions of the [R&R] to which objection is made.” 28 U.S.C.

§ 636(b)(1)(C). In contrast, those portions of the R&R to which no

objection is made need only be reviewed for “clear error.” Macort v.

Prem, Inc., 208 F. App’x 781, 784 (11th Cir. 2006) (per curiam) (quoting

Diamond v. Colonial Life & Accident Ins., 416 F.3d 310, 315 (4th Cir.

2005)).2

III. Discussion

      As an initial matter, McFarland did not file objections to the R&R.

Thus, the Court reviews the R&R as to his motion [239] to sever for




      2 Macort dealt only with the standard of review to be applied to a magistrate’s

factual findings, but the Supreme Court has indicated that there is no reason for
the district court to apply a different standard to a magistrate’s legal conclusions.
Thomas v. Arn, 474 U.S. 140, 150 (1985). Thus, district courts in this circuit have
routinely reviewed both legal and factual conclusions for clear error. See Tauber v.
Barnhart, 438 F. Supp. 2d 1366, 1373–74 (N.D. Ga. 2006) (collecting cases). This is
to be contrasted with the standard of review on appeal, which distinguishes
between the two. See Monroe v. Thigpen, 932 F.2d 1437, 1440 (11th Cir. 1991)
(holding that when a magistrate’s findings of fact are adopted by the district court
without objection, they are reviewed on appeal under a “plain error standard” while
questions of law always remain subject to de novo review).

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clear error. Finding no clear error, the Court will adopt the R&R as to

McFarland’s motion and will deny his motion [239] to sever.

     Additionally, the Court will overrule Middleton and Wakefield’s

objections to the denial of their motions to sever. Middleton and

Wakefield filed perfunctory objections, incorporating their prior

briefing, and identifying no specific findings to which they object.

     “[A] party that wishes to preserve its objection must clearly advise

the district court and pinpoint the specific findings that the party

disagrees with.” United States v. Schultz, 565 F.3d 1353, 1360 (11th Cir.

2009). “Frivolous, conclusive, or general objections need not be

considered by the district court.” Marsden v. Moore, 847 F.2d 1536, 1548

(11th Cir. 1988) (citing Nettles, 677 F.2d at 410 n.8). Further, “a party

does not state a valid objection to an R&R by merely incorporating by

reference previous filings.” Hammonds v. Jackson, No. 1:13-cv-711-

MHS, 2015 WL 12866453, at *6 n.2 (N.D. Ga. May 18, 2015). “This rule

facilitates the opportunity for district judges to spend more time on

matters actually contested and produces a result compatible with the

purposes of the Magistrates Act.” Nettles, 677 F.2d at 410.

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     Because Middleton and Wakefield’s objections were general and

merely incorporated their prior briefing, the Court will overrule them.

Accordingly, it will adopt the R&R as to its denial of the motions [230,

232] to sever.

     A.    Motions for Bill of Particulars

     The R&R denied Middleton and Wakefield’s request for a bill of

particulars, finding that the indictment contains “sufficient information

about the nature of the charges to enable [Middleton and Wakefield] to

prepare for trial, to avoid unfair surprise, and to enable [them] to plead

double jeopardy in the event of a later prosecution for the same offense.”

[300] at 16 (quoting United States v. Bickers, No. 1:18-cr-98-SCJ-LTW,

2019 WL 7559292, at *8 (N.D. Ga. Sept. 17), adopted by 2019 WL

5587050, at *7 (N.D. Ga. Oct. 30, 2019)).

     Middleton and Wakefield object to this finding, arguing that their

requests for information are limited in scope and are necessary to

prepare a defense for trial. They assert that the indictment fails to

allege how there was a “single conspiracy between all of the charged




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codefendants, or how that alleged single conspiracy was effectuated.”

[303] at 5.

      A district court is vested with broad discretion in deciding

whether a bill of particulars should be granted. United States v. Cole,

755 F.2d 748, 760 (11th Cir. 1985) (citations omitted).

      The Eleventh Circuit has noted that a bill of particulars serves

three purposes: “to inform the defendant of the charge against him with

sufficient precision to allow him to prepare his defense, to minimize

surprise at trial, and to enable him to plead double jeopardy in the

event of a later prosecution for the same offense.” United States v.

Warren, 772 F.2d 827, 837 (11th Cir. 1985) (citations omitted).

      However, a defendant cannot successfully move for a bill of

particulars in order “to force the government into divulging its

prosecution strategy.” United States v. Maurya, 25 F.4th 829, 838 (11th

Cir. 2022). Nor should a bill of particulars “be used to compel the

government to provide the essential facts regarding the existence and

formation of a conspiracy.” United States v. Rosenthal, 793 F.2d 1214,

1227 (11th Cir. 1986). In an indictment for conspiring to commit an

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offense in which the conspiracy is the “gist” of the crime, it is “not

necessary to allege with technical precision all the elements essential to

the commission of the offense which is the object of the conspiracy or to

state such object with the detail which would be required in an

indictment for committing the substantive offense.” Wong Tai v. United

States, 273 U.S. 77, 81 (1927) (citations omitted).

      The Eleventh Circuit has held that to sustain a conspiracy

conviction under 18 U.S.C. § 1349,3 the Government must prove that

“(1) a conspiracy existed; (2) the defendant knew of it; and (3) the

defendant knowingly and voluntarily joined it.” United States v. Moran,

778 F.3d 942, 960 (11th Cir. 2015) (quoting United States v. Vernon, 723

F.3d 1234, 1273 (11th Cir. 2013)). Id. The Government must only “prove

that the defendant knew of the ‘essential nature of the conspiracy.’” Id.

(citation omitted). Further, “[a]n individual cannot escape guilt merely

because he joined the conspiracy after its inception or because he played




      3 Section 1349 provides a criminal penalty for anyone who “attempts or

conspires to commit . . .” a crime under 18 U.S.C. § 1343, fraud by wire, radio, or
television.

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a minor role in the total scheme.” United States v. Knowles, 66 F.3d

1146, 1155 (11th Cir. 1995) (citation omitted).

      Here, Defendants Wakefield and Middleton contend that the

indictment “does not explain how each of the ten named defendants

worked together to accomplish the single conspiracy charged” in the

indictment. [229] at 3. However, the indictment provides the names of

the alleged co-conspirators, the time frame of the conspiracy, the

specific offense conduct of each defendant, and the overall object of the

conspiracy, which was “to obtain money and property, by means of

materially false and fraudulent pretenses, representations, and

promises, and by omission of material facts.” [1] at 2. Moreover, the

indictment tracks the language of the statutes implicated and

adequately informs Defendants of the charges pending against them.

      Accordingly, the Court finds no clear error in the magistrate

judge’s R&R and will overrule the objections [303, 304] as to the R&R’s

denial of the request for a bill of particulars.




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     B.    Motion to Suppress

     Defendant Lawson moves to suppress evidence found on her cell

phone which was seized incident to her arrest.

     The Fourth Amendment guards the “right of the people to be

secure in their persons, houses, papers, and effects, against

unreasonable searches and seizures” and imposes a warrant

requirement on most searches and seizures. U.S. Const. amend IV.

However, “it is constitutionally reasonable for law enforcement officials

to seize ‘effects’ that cannot support a justifiable expectation of privacy

without a warrant, based on probable cause to believe they contain

contraband.” United States v. Jacobsen, 466 U.S. 109, 121–22 (1984)

(citations omitted). Moreover, a temporary warrantless seizure

supported by probable cause is reasonable so long as “the police

diligently obtained a warrant in a reasonable period of time.” Illinois v.

McArthur, 531 U.S. 326, 334 (2001).

     Lawson argues that the Government’s twelve-day delay in

submitting a search warrant application to search her cell phone, after

its seizure at the time of her arrest, was unreasonable under the rule

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set out in United States v. Mitchell, 565 F.3d 1347, 1350–51 (11th Cir.

2009) (per curiam), where the Eleventh Circuit held that the seizure of

a computer based on probable cause is unconstitutional if law

enforcement acts with “unreasonable delay” in securing a search

warrant.

     The Government responds that the delay was reasonable under

the totality of the circumstances and considering the factors laid out in

United States v. Laist, 702 F.3d 608, 613–14 (11th Cir. 2012) (“first, the

significance of the interference with the person’s possessory interest;

second, the duration of the delay; third, whether or not the person

consented to the seizure; and fourth, the government’s legitimate

interest in holding the property as evidence” (internal citations

omitted)).

     The magistrate judge determined that each Laist factor weighed

in the Government’s favor, and he recommended that the initial motion

to suppress be denied. He further found that the arguments raised in

Lawson’s supplemental motion to suppress were untimely but

nevertheless considered them on the merits. He subsequently found the

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motion to be “without merit,” [300] at 50, and that the information in

the search warrant affidavits was not stale. Thus, he recommended that

the supplemental motion to suppress also be denied.

     The Court agrees with the magistrate judge that the Laist factors

weigh in favor of denying the motion to suppress.

           1.    Interference with Possessory Interest

     During the twelve-day period after seizure of the phone, Lawson

did not request the return of her phone even though she was released

on bond the day after her arrest.

     “The failure to make a request for return of the cellular

telephone[] during the period of delay undermines Defendant’s claim

that [her] Fourth Amendment rights were impacted.” United States v.

Brantley, 1:17-cr-77-WSD, 2017 WL 5988833, at *3 (N.D. Ga. Dec. 4,

2017); see also Thomas v. United States, 775 F. App’x 477, 490 (11th

Cir. 2019) (per curiam) (citations omitted) (considering fact that the

defendant never requested return of seized desktop computer during

the thirty-three days it took to secure a search warrant as a factor in

diminishing defendant’s possessory interest in the desktop). Also, there

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is evidence that the phone was not functional during the period leading

up to and following the seizure. Thus, the Court agrees with the

magistrate judge that Lawson’s possessory interest in the phone was

not so severely harmed as to warrant suppression.

           2.    Duration of the Delay

     To assess the reasonableness of the delay, the Court must “take

into account whether the police diligently pursued their investigation.”

Laist, 702 F.3d at 614 (quoting United States v. Place, 462 U.S. 696, 709

(1983)). The Eleventh Circuit has noted that “there may be occasions

where the resources of law enforcement are simply overwhelmed by the

nature of a particular investigation, so that a delay that might

otherwise be unduly long would be regarded as reasonable.” Mitchell,

565 F.3d at 1353.

     Indeed, the Eleventh Circuit “upheld a twenty-five-day delay

where the defendant’s possessory interest in the seized property was

diminished and the agents involved were ‘extremely busy.’” United

States v. Turner, No. 8:18-cr-80-T-02JSS, 2019 WL 2287967, at *3 (M.D.




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Fla. May 29, 2019) (quoting Laist, 702 F.3d at 616–17). “The same

considerations compel a finding of reasonableness here.” Id.

     Inspector Daryl Greenberg of the United States Postal Inspection

Service was the sole case agent leading the investigation and testified

at the suppression hearing. He testified that he worked diligently on

Lawson’s case and in drafting the search warrant while continuing to

work on other matters relating to the case. He further testified that he

spent several of the twelve days trying to locate and coordinate the

arrest of two of Lawson’s co-conspirators.

     The Court agrees with the magistrate judge’s finding that “[t]he

government has demonstrated compelling justification for the delay in

seeking and obtaining the search warrant.” [300] at 45 (quoting United

States v. Todd, No. CR 416-305, 2017 WL 1197849, at *12 (S.D. Ga. Feb.

10), adopted by 2017 WL 1172113, at *1 (S.D. Ga. Mar. 29, 2017)).

           3.    Consent to the Seizure

     The Court agrees with the magistrate judge’s finding that

“[a]lthough Lawson did not consent to the seizure of her cell phone, she

has not challenged the seizure, and ‘the seizure was lawful,’ which

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‘favors the government.’” [300] at 41 n.11 (quoting Brantley, 2017 WL

5988833, at *3).

           4.      Government Interest

     The magistrate judge found—and the Court agrees—that the

Government had a strong interest in holding the cell phone as evidence.

     Factors to consider in this determination include “the nature and

complexity of the investigation”; “the quality of the warrant application

and the amount of time we expect such a warrant would take to

prepare; and any other evidence proving or disproving law

enforcement’s diligence in obtaining the warrant.” Laith, 702 F.3d at

614 (internal citations omitted).

     The magistrate judge found that cell phone activity was integral

to the investigation and that Investigator Greenberg “‘saw and had

every reason to believe the exact same activity was occurring on new

loans in January, February, and into March of 2021’ and that the

coconspirators were ‘utilizing the same means,’” including cell phones,

to commit new offenses. [300] at 48 (citation omitted).




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      Also weighing in favor of the Government’s interest is the

complexity of the underlying case and that Judge Vineyard found that

Lawson was “the head of the snake.” Id. There is no evidence of a lack of

diligence by the Government, and the search warrants were sufficiently

detailed to strengthen the Government’s interest under Laith.

      In sum, the Court agrees with the magistrate judge’s conclusion

that “applying the Laist factors to the record before the Court . . . the

time period between law enforcement’s seizure of Lawson’s cell phone

and its obtaining a search warrant was not so unreasonable to justify

suppression.” Id. (quoting United States v. Covington, No. 1:16-cr-145-

TWT-JKL-15, 2017 WL 10410076, at *7 (N.D. Ga. Oct. 5, 2017) (citation

omitted), adopted by 2018 WL 5016499, at *1 (N.D. Ga. Oct. 16, 2018)).4




      4 Lawson argues that this case is more like Mitchell than Laith. Mitchell,

however, is readily distinguishable. Unlike in Mitchell, Lawson was not “merely a
‘possible target’ in a government investigation.” Covington, 2017 WL 10410076, at
*7. Instead, she was indicted, and the phone was seized incident to her lawful
arrest. Different considerations apply here from those applied in Mitchell, and the
Court finds that application of the Laith factors is indeed appropriate.

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             5.    Staleness

      Lawson argues in her supplemental motion that the information

in the search warrant application was too stale to justify the search of

her cell phone. The Government responds that her argument was

untimely, as it was raised for the first time in her post-hearing

suppression motion. It further argues that even were the Court to

consider the supplemental arguments, the information in the search

warrant was a mix of historical and current facts to provide context and

demonstrate probable cause.

      The magistrate judge found that Lawson did not properly raise

the issue of staleness in her motion but also concluded that the

substantive staleness argument is without merit.5

      The staleness doctrine in the context of probable cause “requires

that the information supporting the government’s application for a

warrant must show that probable cause exists at the time the warrant

issues.” United States v. Bervaldi, 226 F.3d 1256, 1264 (11th Cir. 2000).


      5 While the Court agrees that the staleness issue was not properly raised for

the first time in Lawson’s post-hearing supplemental motion, the Court will briefly
address the merits of her argument.

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“No mechanical test exists for determining when information becomes

fatally stale; rather, staleness is an issue which must be decided on the

peculiar facts of each case.” United States v. Bascaro, 742 F.2d 1335,

1345 (11th Cir. 1984) (abrogated on other grounds) (quotations and

citation omitted). In assessing staleness, the Court “may consider the

maturity of the information, nature of the suspected crime (discrete

crimes or ongoing conspiracy), habits of the accused, character of the

items sought, and nature and function of the premises to be searched.”

United States v. Harris, 20 F.3d 445, 450 (11th Cir. 1994).

     Where an affidavit recounts an isolated violation, “probable cause

quickly dwindles with the passage of time,” whereas if the affidavit

recites protracted or continuous criminal activity, “time is of less

significance.” Bervaldi, 226 F.3d at 1265 (quoting Bascaro, 742 F.2d at

1345–46).

     Here, the affidavit contained detailed allegations of an ongoing

conspiracy with many participants. Thus, the Court agrees with the

magistrate judge and concludes that “the nature of the criminal activity

being investigated support[s] a finding of timeliness” as “[t]his was not

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a search for ephemeral evidence of a single discrete criminal act,” but

rather “an ongoing financial conspiracy,” and “[c]ommon sense suggests

that these things are not so easily dissipated especially given the

continual nature of the conspiracy.” United States v. Kellogg, No. 1:12-

cr-383-1-CAP, 2013 WL 3991956, at *16 (N.D. Ga. Aug. 1, 2013).

     Further, the cell phone and the information derived therefrom is

digital media, and courts have generally found that longer periods of

time do not render this kind of information stale. See, e.g., United States

v. Sadiki-Yisrael, 1:16-cr-145-TWT-JKL-3, 2018 WL 5091914, at *6

(N.D. Ga. May 24), adopted by 2018 WL 5085687 (N.D. Ga. Oct. 18,

2018) (“[T]he nature of the evidence sought in this warrant—including

computer and digital evidence—weighs against a finding of staleness.”).

     In sum, the Court agrees with the magistrate judge’s findings and

is similarly “persuaded that the ongoing nature of the alleged fraud,

facilitated through electronic communications, together with the nature

of the property being searched, ‘overcomes any alleged staleness in the

information in the affidavit.’” [300] at 56 (quoting United States v.

Acosta, 807 F. Supp. 2d 1154, 1228 (N.D. Ga. 2011)).

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IV.     Conclusion

        For the foregoing reasons, Defendants’ objections [303, 304, 305]

to the R&R [300] are overruled. The Court adopts as its order the R&R.

Defendants’ motions [221, 230, 232, 239, 272] to sever and suppress are

denied.

        IT IS SO ORDERED this 30th day of March, 2022.



                                     ____________________________________
                                     Timothy C. Batten, Sr.
                                     Chief United States District Judge




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